Executive Summary

The purpose of this report is to provide basic information about the various legal aid programs across the country. This report is divided into the following three main sections: Family Legal Aid Systems, Domestic Violence Legislation, and Recommendations. Appendices are also included.

Family Legal Aid Systems: In Section I, several aspects of family legal aid systems across the country are explored, keeping Prince Edward Island's system as the main base of comparison. For consideration, the categories reported on include delivery model, financial eligibility, case eligibility, tariffs, duty counsel, other civil law, other legal services, and domestic violence legislation. Appendix B provides a provincial and territorial overview for most of these categories. Data varies widely across the country, but it can be seen that, regionally speaking, Atlantic Canada suffers the greatest reduction in family legal aid services. The funding table in Appendix A illustrates this situation quite clearly.

Domestic Violence Legislation: This type of legislation is relatively new in Canada. Currently, Prince Edward Island, one of the first provinces to institute such legislation, is the only province in Atlantic Canada to have an Act of this type. The central function of Domestic Violence Legislation is the creation of a short and long term protection order. Definitions of various terms, protection orders, and protection order provisions are all explored, and Appendix C provides an overview of provisions common to all provinces and territories that possess Domestic Violence Legislation.

Recommendations: The recommendations arising from this report are divided into two sections. Under "Family Legal Aid Systems," the points suggested deal with the overall system of legal aid in Prince Edward Island and how it can be improved. Greater funding commitment by all levels of government for family legal aid is a major recommendation of this report, and many of the other points in this subsection stem from this overreaching goal. Particularly for women, family legal aid needs to have a broader scope in both who it reaches and what areas of the law are covered by this essential service. As well, better tracking of legal aid applications is necessary in order to provide a more nuanced overview of legal aid in Prince Edward Island. Information on what happens to those applicants who are denied legal aid will also give a better understanding of the consequences of cuts to this social service.

In the "Domestic Violence Legislation" subsection, an important recommendation deals with bringing the Victims of Family Violence Act in agreement with Prince Edward Island's Human Rights Act. Finally, most recommendations concern enhancements that can be made to Prince Edward Island's Victims of Family Violence Act.

Introduction

What use is a Charter of Rights and Freedoms guaranteeing your right to life and liberty, freedom of speech or equality before the law, if you cannot defend yourself against unjust accusations or discriminatory treatment? What is the point of laws entitling citizens to benefits, such as unemployment insurance or support payments from an ex-spouse, if program administrators or your ex-husband know you cannot afford the appeal or lawsuit required to get your rights enforced?" (Legal Aid and the Poor 2)

The purpose of this report is to provide basic information about the various legal aid programs across the country. Where possible, the most up-to-date information on each province and territory has been provided. This report does not have an in-depth analysis of each individual family legal aid system; such a task is well beyond the scope of this project. Rather, information is collected with the intent to inform those who may wish to make comparisons across Canada, or to use the information provided in this report to formulate an analysis of their own.

Although family legal aid systems vary widely across Canada, the one constant is prevalent unmet need; family legal aid in this country is, almost universally, in a funding crisis. In 1995, the Canadian Heath and Social Transfer (CHST) was introduced by the federal government, a policy that drastically changed the way funding was allocated to the provinces. Previously, monies were allocated to specific departments, programs, and so forth. Under the CHST, however, a lump sum is transferred to the province by the federal government with no stipulations upon where and how these monies are spent. These transfer payments have also been significantly reduced as a whole since the advent of the CHST.

Under the old system, both criminal and civil legal aid was cost-shared by the federal and provincial governments. With the CHST, however, only criminal legal aid continues to be cost-shared; civil legal aid, including family legal aid, is solely funded by the provincial government. As a result, family legal aid is virtually non-existent in many provinces, and significantly reduced in all. In its 1996-97 annual report, the Ontario Legal Aid Plan notes that "the need for legal service is vast, and to a distressing extent, unmet"(4). Furthermore, the report later confirms that "[the] unrepresented people in family law are predominately women"(4).

From the research gathered for this report, it is clear that Ontario's situation is not unique. In particular, Prince Edward Island's family legal aid service is woefully limited. Nationwide, Prince Edward Island has the least amount of funding, per capita, for legal aid. Prince Edward Island also has the dubious distinction of having the second lowest rate of approved applications (see Appendix A). However, Prince Edward Island is not alone in its limited funding for family legal aid; cuts have been made in this area across the country.

Primarily, in Canada, the least funded element of the legal aid system is family legal aid. Primarily, the greatest number of application refusals are for family legal aid. Primarily, the most decreased level of legal service is family legal aid.

Primarily, the largest group of people applying for family legal aid are women.

In this era of massive funding cuts, an even more disturbing trend is the tendency to prioritize family legal aid. In Prince Edward Island, women who do not have children face a very difficult journey for acquiring legal aid; almost all of the scant family legal aid delivered in Prince Edward Island is contingent upon the involvement of a child in the disputed matter. Women who face legal difficulties where a child is not involved seldom receive the legal aid they need. As such, a major recommendation of this report is that family legal aid should be provided solely on the need and circumstances facing each individual. While this report does not dispute that the protection of children is a fundamental function of society, it questions the devaluation of women based upon which biological functions they have performed. The absence of children does not make women less vulnerable to violence, either physical or emotional, nor does it protect them from economic or other legal hardships. In order for Prince Edward Island to offer true protection to its citizens, this limiting of legal services to women with children must stop.

However, one area in which Prince Edward Island is making positive steps forward is with its Victims of Family Violence Act. Domestic Violence Legislation is a relatively recent development in Canada, and Prince Edward Island is at the forefront of developing and implementing this kind of legislation. A major need for family legal stems from domestic violence, and this type of legislation is one that should often work in concert with the legal aid system.

Prince Edward Island's Victims of Family Violence Act is one that other provinces can learn from. For example, Prince Edward Island's inclusion of child care provisions into its protective orders is a positive step other provinces would do well to emulate. If a woman's partner has access to her children, the partner then has access to the woman, thus negating the effects of the protective order. In providing measures to regulate this kind of access within the protective order, Prince Edward Island's Victims of Family Violence Act continues to recognize the special circumstances of domestic violence.

Nevertheless, Prince Edward Island's domestic violence legislation is not perfect; far from it. There are several key areas in which the Victims of Family Violence Act can be improved, such as in the areas of weapons seizure, suspension of the Highway Traffic Act, and counselling. Prince Edward Island can benefit in several areas from the progress made in the domestic violence legislation developed after its own. Additionally, the Victims of Family Violence Act is one that should offer protection to all women and men who need it. The intimate relationships it covers should not be limited to the ones between a man and woman; same-sex couples should be privy to this legislation as well.

The overall objective of legal aid in general is for the protection and safeguarding of the citizens of this country. It is obvious that as a country, we have failed to meet this purpose. Furthermore, it is clear that some provinces, such as Prince Edward Island, suffer more than others. With the material provided by this report, it is hoped that the need to obtain this failed goal becomes self-evident.

Research CategoriesThe following entries give a brief description of the research categories chosen for this report.

Delivery Model: The mode of delivery for legal aid services is certainly a category that varies from province to province. In many programs, delivery models are under review, and for years this topic has been one that has sparked contention in the legal community. As such, the type of delivery model for each legal aid program has been duly noted.

Financial Eligibility: Obviously, funding is a crucial area of legal aid coverage. Since program funding generally determines financial eligibility qualifications, this category has been included in this research project. Appendix A contains a more detailed breakdown of per capita funding taken from a 1996-97 study.

Case Eligibility: Closely tied to funding, this category details what sorts of cases are covered by legal aid programs. In accordance with the objectives of this study, only family law cases eligible for legal aid are dealt with.

Tariffs: Lawyer's fees for legal aid vary widely across the country, and it is generally accepted that the rate given to legal aid suppliers of the private bar is a major deterrent for lawyers willing to take on these types of cases. Correspondingly, these rates have been included in this study. However, the delivery model of legal aid services should be noted in examining this category; in some cases, the percentage of private bar members providing legal aid is extremely low, as the delivery model permits.

Duty Counsel: Although all provinces and territories provide duty counsel for those facing arrest or detainment, some provinces also provide this service for civil legal matters.

Other Civil Law: Several provinces have comprehensive civil legal aid coverage that goes beyond those matters deemed be "family" matters. Some provinces include these areas under the title of "poverty law" proceedings, whereas others classify them as simply "other civil matters." Since women in particular have crucial legal needs that frequently extend beyond the scope of family law, this category has been included in order to provide a brief overview of other legal proceedings available from legal aid programs.

Other legal services: This category is meant to provide information on other government funded or provided legal services beyond the standard, lawyer provided advice. Legal clinics, specially designed legal services, etc. are the types of services detailed in this report. Legal information groups, such as Prince Edward Island's Community Legal Information Association (CLIA), have not been included under this category, although their importance to the community is not disputed. For the most part, information for this category is gathered from the annual reports of legal aid systems.

Domestic Violence Legislation: Acts specifically created to deal with family violence are relatively recent, having been implemented in the mid 90's. All family violence acts concern various protective court orders, and in many cases, these acts were developed to provide an expedient and cost-effective method of dealing with family violence and the court system. As such, information on these acts have been included in this study.

Recommendations

The following recommendations arise out the preceding nationwide comparison of family legal aid systems and domestic violence legislation.

• Commit to much greater funding for family and civil legal aid by all levels of government. Prince Edward Island's family legal aid availability in particular is reaching crisis proportions, and other civil legal aid is non-existent.



• Eliminate prioritization of family legal aid coverage based on dependents. The sole criteria for priority treatment be the risk of danger to any individual, or that individual's property; no one should be denied assistance because they lack dependents.



• Cover family law cases where children are not involved.



• Broaden legal aid coverage to include civil law matters outside the realm of family law, such as the "poverty law" cases in British Columbia or Ontario.



• Consider the creation of separate centres or units to administer family legal aid, including specialized units dealing with domestic violence.



• Run more drop-in centres, advice clinics, and similar services on a regular basis. Special effort should be made to offer these services in all regions of the Island, particularly in more rural areas.



• Collect more specific data on legal aid applications and certificates, including a breakdown upon gender lines.



• Study rejected family legal aid applicants in order to determine the consequences relating to this denial of services.

Domestic Violence Legislation should:

• Comply with Prince Edward Island's Human Rights Act by eliminating gender-specific language in Prince Edward Island's definition of "family relationship," thereby including same-sex couples in the definition of those who may benefit from protective orders.



• Specify the parameters for Prince Edward Island's definition of "members of the same family," including people who have had a child together, the elderly, or any other dependents.



• Improve Prince Edward Island's Victims of Family Violence Act by including provisions dealing with weapon seizure, using Manitoba's Domestic Violence and Stalking Prevention, Protection, and Compensation Act as a model.



• Amend Prince Edward Island's Victims of Family Violence Act to include monetary compensation, using Manitoba's Domestic Violence and Stalking Prevention, Protection, and Compensation Act as a model.



• Contain provisions in Prince Edward Island's Victims of Family Violence Act ordering counselling for the respondent, as well as counselling at the expense of the respondent for any family members that need it as a result of domestic violence.



• Require the respondent to post bond in order to ensure compliance with the protective orders in Prince Edward Island's Victims of Family Violence Act.



• Implement more comprehensive provisions on communication restrictions and place restraint in Prince Edward Island's Victims of Family Violence Act.



• Include provisions dealing with suspension under the Highway Traffic Act in Prince Edward Island's Victims of Family Violence Act, using Manitoba's Domestic Violence and Stalking Prevention, Protection, and Compensation Act as a model.

mailing address:
P.O. Box 233,
Charlottetown, PEI C1A 7K4

phone: (902) 368-5040
fax: (902) 368-5039
e-mail: wnpei@wnpei.org